Citation Nr: 22015778 Decision Date: 03/19/22 Archive Date: 03/19/22 DOCKET NO. 17-18 318 DATE: March 19, 2022 ORDER Service connection for bilateral hearing loss is denied. A total disability evaluation based on individual unemployability (TDIU) from July 15, 2014 to June 10, 2015 is denied. FINDINGS OF FACT 1. The competent evidence indicates that the Veteran's current bilateral hearing loss was not caused by in-service noise exposure and did not manifest to a compensable degree within one year of service separation. 2. The Veteran's service-connected disabilities did not render him unemployable from July 15, 2014 to June 10, 2015. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.309, 3.385. 2. The criteria for a TDIU due to service-connected disorders for the period from July 15, 2014 to June 10, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1967 to September 1969. In April 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a discussion with the Veteran towards substantiating the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The transcript is in the record. In July 2021, the Board of Veterans' Appeals (Board) remanded the claim to the VA Regional Office (RO) to schedule an additional VA examination and medical opinion, which was completed in August 2021. The RO complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for bilateral hearing loss VA awards service connection for disabilities resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "Direct" service connection requires: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus (a causal link) between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge may still be service connected if the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Under 38 C.F.R. § 3.385, impaired hearing is considered a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155 (1993). In the Hensley case, the Court of Appeals for Veterans Claims (Court) held that service connection for hearing loss cannot be denied solely because a veteran had normal hearing during service. Certain diseases listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) may be presumed to be service connected based on evidence of "continuity of symptomatology" without establishing a causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is an "organic disease of the nervous system" and is considered a "chronic disease" under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from service, the disease will be presumed to have been incurred in service, even if there is no evidence of the disease during service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within one year of separation, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and explain its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, the Board evaluates the entire record on appeal. 38 U.S.C. § 7104 (a). When the evidence fully supports the claim, it will be granted. When the evidence for and against the claim is approximately balanced, The Board resolves any reasonable doubt in the Veteran's favor and grant the claim. When the evidence is not approximately balanced, there is no reasonable doubt to resolve, and the claim will be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3rd 1391 (2021). The Veteran has a current hearing loss disability and VA has recognized his military noise exposure. The remaining question is whether there is competent medical evidence linking the Veteran's current disability with in-service noise exposure. The Veteran's service treatment records (STRs) do not contain reports of hearing loss or tinnitus. At his 1967 induction examination, the Veteran's clinical hearing evaluation was normal and his pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 Not tested 0 LEFT 5 5 0 Not tested 0 At his June 1969 separation examination, the Veteran's pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 Not tested 15 LEFT 15 15 15 Not tested 15 The Veteran's clinical hearing evaluation was normal, and he denied ever having had "hearing loss," or "ear trouble." The Veteran's separation examination further indicated that he received a "1" for the "hearing" portion of his separation PULHES profile. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H"); eyes ("E") and psychiatric condition ("S"); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The Veteran's STRs are highly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803 (4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Although the Veteran's hearing was within normal limits during active service, he may still establish service connection with competent medical evidence showing that his current hearing loss was caused by in-service noise. See Combee, Hensley, above. The Veteran reports that he first noticed hearing loss in 1971 but did not seek treatment until December 2013. He reports he began noticing ringing in his ears in the mid 1970's. The Veteran also reported that after service separation in 1969, he worked as a clamp truck driver for 39 years. He reports that he held a variety of positions during his career, including shipping, driving, and unloading trains. Post-service VA treatment records indicate that the Veteran's hearing has been periodically evaluated from December 2013 to the present. In June 2015, a VA audiologist opined that the Veteran's hearing loss was not related to service. The VA examiner noted the Veteran's hearing thresholds were normal in his entrance and separation examinations. The examiner noted, "according to the American College of Occupational Medicine Noise and Hearing Conservation Committee, 'a noise induced hearing loss will not progress once it is stopped.'" In an August 2021 VA examination report, a VA audiologist noted the Veteran was exposed to loud noises in service while performing his duties as a combat engineer. The examiner also noted the Veteran's contentions that he first noticed difficulty hearing in 1971 and tinnitus in the mid 1970's. However, the VA examiner also noted that in-service audiological testing indicated that the Veteran's hearing was normal throughout service. The examiner explained that hearing loss and tinnitus can be compounded by life experiences such as aging, occupational and recreational noise exposure. Noting that the Veteran worked as a clamp truck driver for 39 years, the examiner opined that the Veteran's current hearing loss was not likely related to noise exposure during active duty. Service connection is not warranted because the competent medical evidence indicates the Veteran's hearing loss was not caused by military noise. While failure to meet the criteria for hearing loss at the time of separation from active service does not necessarily bar to service connection for a hearing loss disability, the Veteran has not submitted any probative medical evidence that his current hearing loss is related to service. Heuer v. Brown, 7 Vet. App. 379 (1995). The August 2021 VA examiner opined that, even accounting for the Veteran's military noise exposure, his current hearing loss is more likely due to other factors such as aging and his 39-year history of post-service occupational noise exposure. Additionally, there is no evidence that sensorineural hearing loss manifested to a compensable degree within one year of service separation. The claim is denied. The Board considered the Veteran's lay assertion that he first noticed difficulty hearing in 1971. Although he is competent to report these symptoms, he does not have the medical training to diagnose himself with sensorineural hearing loss or to link the condition to in-service noise. See Jandreau, above. Unlike tinnitus, sensorineural hearing loss requires specialized training for determinations as to diagnosis and causation and is therefore not susceptible to lay opinions on etiology (cause). The probative value of the Veteran's lay statements is outweighed by the August 2021 VA opinion. The evidence for and against the claim is not approximately balanced. There is no reasonable doubt to resolve and service connection for bilateral hearing loss is denied. Lynch v. McDonough, 999 F.3rd 1391 (2021). 2. Entitlement to a TDIU from July 15, 2014 to June 10, 2015 VA may assign a TDIU to veterans who are unable to secure or follow substantially gainful employment because of their service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more disabilities, one disability must be rated 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). These requirements are referred to as "schedular criteria" for a TDIU. Where a veteran does not meet the schedular criteria, a TDIU evaluation can still be awarded if the evidence establishes that service-connected disabilities have rendered the veteran unable to secure and follow substantially gainful employment. See 38 C.F.R. §§ 3.340 (a), 3.341(a), 4.16(b). To grant a TDIU on an "extra-schedular" basis, the record must reflect that apart from nonservice-connected conditions, other circumstances place the claimant in a different position than other veterans with the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, because of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities are post-traumatic stress disorder (PTSD) with anxiety, depression, and a sleep disorder rated 50 percent from March 5, 2014 to February 8, 2016, and 70 percent thereafter; and migraine headaches rated 30 percent since June 10, 2015. Since June 10, 2015, the Veteran's combined rating was at least 70 percent and his PTSD was rated 50 percent. He met schedular criteria as of June 10, 2015. The RO assigned a TDIU effective June 10, 2015, the date the Veteran met schedular criteria. (CONTINUED ON THE NEXT PAGE) The evidence for and against the claim is not approximately balanced. There is no reasonable doubt to resolve, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.